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Many factors slow wheels of justice

Experts say more judges, prosecutors needed

The collapse of an Airdrie sex assault case has put Alberta’s justice system on trial.

Photograph by: Calgary Herald/Files
, Getty Images

The collapse of a case against an Airdrie man accused of molesting his stepdaughter has put Alberta’s justice system on trial.

Wildrose MLA Rick Anderson sparked the recent debate by alleging a lack of prosecutors was responsible for delays that scuttled the Airdrie case, but many who work in the system said a combination of factors is responsible for clogging Alberta’s courts — and not all of them have to do with the number of people working there.

“The cases that get stayed typically have multiple problems, and it’s easy to have multiple problems because the system is so complex, has so many actors and is under-resourced,” said D’Arcy DePoe, president of the province’s Criminal Trial Lawyers Association.

DePoe and others identified several issues contributing to the problem.

Prosecutors: The number of provincial prosecutors sits at 302 — an increase of 69 since 2006. Justice Minister Jonathan Denis said in a recent interview the ratio of prosecutors to population is fourth-highest in the country, in line with Alberta’s rank as the fourth most populous province.

To DePoe, the issue is less the number of Crown prosecutors and more about where they work and how they’re assigned cases.

“There’s a distinct difference between how cases are handled between the big centres and the smaller centres,” he said.

It’s common practice for prosecutors in larger cities like Calgary to have “ownership” over a case from beginning to end — and therefore a greater familiarity with all the details, he said.

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Judges: Denis and the judiciary agree the Court of Queen’s Bench, the province’s superior court, needs more judges.

The court currently has 61 justices and has asked the federal government to fill four vacancies with new appointees.

Much of the recent debate has focused on delays in the province’s criminal justice system, but there are also heavy demands on Queen’s Bench justices hearing civil cases.

The court has a dispute-resolution process designed to streamline cases by settling issues before they go to trial, but Chief Justice Neil Wittmann said that program is booked solid.

“We’re going to have to cut back on services if we don’t get more judges,” he said.

Although Alberta’s population has grown by a million since the last time the Queen’s Bench roster was increased in 1996, Wittmann said population is only one reason for the added challenges.

Cases have become more complex, said Wittmann, meaning the court requires more time to hear cases and judges need more time to pore over the evidence before making a decision.

In 2005, the average length of a Queen’s Bench justice’s written decision was 11 pages. The current average is 16 pages — and not because judges are more long-winded, Wittmann said.

“That reflects the necessity to review evidence and give reasons that are understandable,” he said.

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More self-represented defendants: At a time when cases are becoming more complex, more people are representing themselves instead of hiring a lawyer.

“It extends the time necessary you have to give people to ensure the process is fair. Part of being fair is making sure they understand what the process is,” Wittmann said.

Although a defendant responsible for slowing down their own case couldn’t turn around and get it thrown out due to institutional delays, the phenomenon adds to the overall congestion in the courts.

“Having a burdened Crown, to me, isn’t as bad as having dozens and dozens of unrepresented accused floating through the court system,” said DePoe.

Many defence lawyers blame the trend on changes to legal aid eligibility requirements in 2010 that cut off many low-income Albertans.

In addition, DePoe said fewer defence lawyers are willing to take legal-aid cases because the tariffs they’re paid are too low.

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Disclosure requirements: Police and prosecutors are required to turn over the evidence they have against an accused person to the defence.

Investigators have been saying for years the volume of evidence demanded by defence lawyers has significantly grown.

Although the time police spend preparing disclosure packages happens outside court, one veteran investigator said it’s common for additional demands for evidence to begin creating delays.

“Even simple cases become laborious because of issues that get raised,” said Calgary Police Association president Les Kaminski, who represents the police department’s 1,900 rank-and-file officers.

“I guarantee you there will be four, five, six adjournments, and that a lot of that will be disclosure issues,” he said.

Although a defence lawyer couldn’t use those kinds of delays as justification for staying or dropping charges against their client, repeated adjournments add to an already-crowded court docket.

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Court hours and courthouses: Judges, prosecutors and defence lawyers have embarked on a case-management program to ease delays in provincial court, where all criminal cases start out.

Several courthouses now have a case-management office, a counter-style setup that allows lawyers and defendants to drop in during court hours for routine procedures such as entering pleas or scheduling hearings without tying up a courtroom.

The initiative has helped in larger centres such as Calgary, but it has a limited effect in smaller communities, where courthouses usually have a single room and are open only one or two days a week.

“Some courts are too small and they don’t sit often enough,” DePoe said.

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